Wednesday, 2 December 2015

Can Schengen be suspended because of Greece? Should it be?

Steve Peers

A leaked Council document (see
separate blog post) suggests in effect that the Schengen system should
be suspended for up two years, due to ‘systemic deficiencies’ in the control of
external borders by Greece. That would allow any Schengen States which wish to
do so to maintain or introduce border checks on their ‘internal’ borders with
each other. Probably not all Schengen States would take this opportunity, but
many would (especially since a number of them already do so). This follows a recent
press report in the Financial
Times (paywalled), which states that some Member States are considering
threatening to throw Greece out of the Schengen system, due to its management
of refugees and migrants at the external borders.

It’s possible that the general
threat to suspend Schengen is intended as a threat to suspend Greece only, but
is simply badly drafted. Or perhaps the idea is to threaten to suspend the
whole of Schengen, and pin the blame on Greece. Either way, in my view, this
threat is seriously mistaken, for both legal and political reasons.

The Legal Framework

In principle, the Schengen system
can’t be scrapped completely without amending the EU Treaties, since the
Treaties refer to it several times. Instead, there are two types of possible suspensions:
short-term (up to three months) and long-term (up to two years). The leaked
Council document refers to use of the long-term suspension.

The short-term waiver rules have
always formed part of the Schengen system. They allow individual Member States
to reimpose checks on internal borders for
a short time, for reasons of public policy and public security. Over the years,
those provisions have often been invoked by Member States, usually for a few
days during an international summit or football tournament. This autumn, they
have been invoked more often and for longer periods, as a response to the refugee
crisis affecting the continent. Since this reintroduction is only allowed for a
maximum period of six months, there is an upcoming legal problem if Member
States with to prolong these controls past next spring.

But a newer, different set of
rules apply to suspending a Member State from the Schengen system. As a
response to the ‘Arab Spring’ of 2011, and a spat between Italy and France over
responsibility for some Tunisians, the Schengen rules were amended in 2013 in
order to provide for the collective reimposition of internal border controls for
up to two years. Those amendments need to be read in conjunction with the rest
of the rules which they amended. So I suggest you read them in the codified version (showing the amendments), which is set out in an Annex to the report
which I wrote for the SIEPS thinktank on the revised rules.

These amendments were generally
understood as providing in effect for the possible suspension of individual Member
States from the Schengen system. However, that is not expressly set out in the
rules, and the leaked Council document clearly intends something broader, since
it refers explicitly to continuation of existing
border checks, ie between Germany and Austria, not (only) between other Member
States and Greece. But the role of individual Member States is still relevant,
because this collective suspension of Schengen can only be triggered if there
are ‘serious deficiencies’ in how one Member State applies the Schengen external
borders rules.

The process would start with a Commission
recommendation following a Schengen evaluation, according to the separate rules
(also amended in 2013) on the process of assessing whether Schengen states
comply with their obligations. If the Commission finds in its report that there
are ‘serious deficiencies’ in a Member State complying with its external border
control obligations, then it can recommend that this country take ‘specific
measures’, including accepting assistance from the EU’s border agency, Frontex,
and submitting plans for Frontex to assess.

If there is not enough action on
settling these problems within three months, the process can escalate. In ‘exceptional
cases’ where there is a ‘serious threat to public policy or public security’ in
the Schengen area or parts of it, the Council can recommend ‘as a last resort’
to Member States that they reimpose border controls against that Member State for
periods of six months, renewable up to the two-year maximum. It’s arguable that
this process can be fast-tracked and be applied even without giving the Member
State three months to fix its problems. Since
Member States would have to vote in favour of it in the Council (by a qualified
majority), it can be assumed that most Member States would then follow this
recommendation. The Council has to act on a proposal from the Commission, but Member
States can request the Commission to make such a proposal.

In adopting this recommendation, the
Council has to assess whether it will ‘adequately remedy’ the threat to public
policy, as well as the ‘proportionality’ of the measure in relation to the threat.
This must be based on detailed information, and consider the EU assistance
which was provided or which could have been requested, the likely impact of the
deficiencies in border control upon the threat to public policy or public
security, and the impact on the free movement of persons.

The legality of suspending Schengen and/or sanctioning Greece

It’s not clear exactly where we
stand in the process as regards Greece. The Commission has recently adopted a
Schengen evaluation report, but it’s not public. It’s not even clear if that report
concerns Greece (all Schengen states are evaluated). So it would take a while
(three months after a formal finding of ‘serious deficiencies’, which hasn’t
happened yet as far as I know) before Greece could be sanctioned, unless the
process is fast-tracked.

Indeed, the Council document
seems to be aiming to fast-track the process. It wants the Council already to
request a Commission recommendation to suspend the abolition of border controls
for up to two years. Since (as far as I am aware) there’s not even a finding of
Greek ‘serious deficiencies’ yet, there’s obviously not yet a three month
period during which those problems continued. And the Council document doesn’t
even attempt to assess whether the substantive criteria apply; the intention simply
seems to be to find some way to justify a longer period to continue the internal
border checks which Member States have reintroduced recently.

If the current threats get to the
stage of a Council Recommendation that border controls be reimposed, it’s not
clear if Greece could sue the Council in the EU Court of Justice (since
technically Recommendations are not binding), or would have to sue Member States for following the
Recommendation instead. Individual travellers could also sue Member States in
national courts for imposing border controls, indirectly challenging the
legality of the Recommendation; national courts could then send the issue to
the Court of Justice.

Procedural issues apart, is there
a substantive case for suspending
Schengen rules and reimposing border controls, because of ‘serious deficiencies’
due to Greek control of the external border? In my view, there are serious
doubts that there is such a case, for two main reasons.

First of all, according to the Financial Times article, other Member
States are annoyed because Greece did not accept the support of Frontex, register
enough asylum-seekers, or request humanitarian aid to assist them. While the failure
to request support from Frontex is referred to in the EU border controls
legislation, the other issues are not. And for very good reason: because the failure to control the numbers of
refugees at the external borders is NOT a breach of the Schengen rules.

This assertion may seem
surprising, because the critics of the EU’s response to the refugee crisis – on
either side of the argument – often assume that EU law requires refugees and
asylum-seekers to be refused entry at the borders. From one side, the EU is
criticised for letting refugees and asylum-seekers in, and therefore ‘not protecting its borders’.
From the other side, the EU is criticised for establishing a ‘Fortress Europe’.

Both sides are clearly wrong – at
least, on this specific legal issue. This follows from the Schengen Borders Code itself, which expressly exempts refugees from the rules on penalising
non-EU citizens for unauthorised entry across the borders, and includes an
exemption from the usual conditions on border crossing if the non-EU citizen is
claiming asylum. It equally follows from the EU’s asylum procedures Directive, which requires Member States to process not only asylum applications
made on the territory, but also those made at the border. (Of course, Member States don't always fully comply with their EU legal obligations).

So it’s really the border
crossing rule itself which is controversial, not Greece’s failure to apply it. There’s
a political problem with the rule in
practice, either because (from one side’s perspective) it is no longer keeping
out enough people, or (from the other side’s perspective), it is too difficult for
genuine refugees to reach EU
territory without the risk of drowning or paying money to smugglers.

But for the purposes of finding
that there are ‘serious deficiencies’ in Greek control of the external border,
the point is that Greece is not
failing in any obligation to stop asylum-seekers crossing the external borders –
quite simply because there’s no such obligation. Just the opposite. Of course,
due to the sheer scale of the numbers involved, it’s difficult for Greece to
operate an effective asylum system, but that failure is subject to a wholly separate
process. Indeed, the European Court of Human Rights and the CJEU have already
said that Member States cannot send asylum-seekers back to Greece, because the
asylum system has effectively collapsed there. The Dublin III Regulation
sets out rules which apply in the event that the Dublin system has to be
suspended for those reasons, and the EU has recently adopted Decisions
(discussed here) to relieve the burden on Greece a little by relocating
some asylum-seekers from that country.

Of course, some of those who
cross the Greek border do not apply for asylum immediately, or later fail in
their asylum applications. According to UNHCR statistics, about half of
those recently arriving in the Greek island of Lesvos (the main destination) are
coming from Syria and Iraq (countries with high refugee recognition rates) and
half are coming from other countries, with lower recognition rates. In that
context, it is legitimate to suggest that Greece ought to accept assistance
from Frontex and other EU agencies, and that Frontex in particular has a role
coordinating the fingerprinting and registration of people when they first
arrive. (Fingerprinting of irregular migrants and asylum-seekers isn’t a
panicked authoritarian response to the refugee crisis, as is sometimes
suggested, but a long-standing EU law obligation, going back to 2003).

The second problem is the link
between the Greek ‘deficiencies’ and the reimposition of border controls,
either against Greece or between other Schengen states. There’s certainly no link between the
deficiencies and the borders between Greece and other Schengen States, since none
of those are land borders, and
(would-be) asylum-seekers and refugees travel by land between Greece and other
Member States. So checking people flying
between Greece and other Schengen States would be hugely disproportionate to
the relevant deficiencies.

What about border controls between
other Schengen States? These are the controls that the Council document
expressly wants to continue. Here there is
a link between the people originally entering via Greece and later trying to
cross the Austria/Germany border, for instance. But again, the real deficiencies
are with the EU’s asylum system, not
Greek border controls, since EU rules provide for admission of asylum-seekers. Asylum-seekers move on to other Member States because the
Dublin rules were not drawn up with today’s increased numbers of asylum-seekers
in mind, and Greece can’t manage the numbers that it would be responsible for
under the rules. That’s certainly a problem – but that problem is not caused by Greek deficiencies in external
border controls. The EU has to use the legal instruments available under its asylum policy to try to fix it.

Political context

Although it’s not evident from
the face of the document, the political context of the Council paper may be an attempt
to convince Greece to agree to further measures relating to border control.
That’s evident from the Financial Times
article, which conveys several Member States’ allegations against Greece (summarised
above). In turn, the Greek government has defended itself and made
counter-allegations against the EU, which are summarised in a Guardianarticle.

In some ways, this resembles the
attempt by some Member States this summer to coerce Greece to leave the euro ‘temporarily’.
As I argued at the time, this process did not have a shred of legality, unless
we use the creative argument that Greece had never legally joined the
euro.

However, there are differences as
regards Schengen. There is on paper a process to suspend Schengen rules temporarily;
the only question is the correct interpretation of those rules. Undoubtedly
some will not share my interpretation above, and would argue that defects in the asylum system are implicitly part of the assessment of whether there are 'serious deficiencies' in external border control. In the absence of case law to date, it’s
an open question which of us would be correct. It’s also an open question
whether the Commission – which has made much of its strong support for Schengen
– would be willing to suggest a suspension for two years.

Even if it’s legal to threaten
Greece this way, is it wise? The EU was heavily criticised for trying to
strong-arm Greece as regards the euro – although technically it wasn’t the EU
institutions making the threats last summer, but rather the parallel ‘Eurogroup’
bodies which are not an ordinary part of the EU’s political system.

Far better for the EU to redouble
its efforts to help both Greece and the people concerned, by ensuring that
there are decent reception centres and living conditions in the country, by
making greater effort to ensure that the relocation system works, and by
working with Turkey to genuinely improve the living conditions of refugees
there, so that fewer of them want to leave (more on that recent EU/Turkey deal
in a later blog post).

As regards Schengen itself, if a
temporary suspension is strongly desired, it might be better to provide for it
by means of a legislative amendment to the Schengen Borders Code (with a ‘sunset
clause’ providing for its expiry, since permanent suspension would violate the
Treaties) rather than by the indirect means of threatening Greece. Or an
amendment to the rules on checks near the internal borders could justify some
occasional checks in the event of dysfunctional applications of EU asylum rules,
if fixing those rules proves politically impossible – as well it might.

Schengen is a different issue from the free movement of EU citizens; the UK (and some other Member States) have the latter but not the former. Is the free movement of EU citizens to Greece a significant cause of Greek unemployment? Conversely, how much is that Greek unemployment alleviated by the free movement of Greek citizens to other Member States?

Ending the free movement of EU citizens to Greece means Greece leaving the EU, since other Member States seem very unwilling to negotiate any significant changes to the free movement rules (as the example of the UK shows). You may support that outcome, but you should acknowledge it openly if you do.

I live for the moment my homeland greece will be free from eurO AND eu.

"How much how much is that Greek unemployment alleviated by the free movement of Greek citizens to other Member States?"ZERO%. It like someone shoot you and then wants to alleviate your pain! No thanks!

Asserting something as a fact does not make it true. The most recent batch of statistics on labour mobility within the EU don't have 'net inflow' or 'net outflow' statistics for Greece, but they do state that the outflow from Greece and Spain more than doubled from 2007-11 (p 1 and 2 in this report: http://www.eurofound.europa.eu/sites/default/files/ef_publication/field_ef_document/ef1456en.pdf) Basic economics would suggest that more people leave a country with higher unemployment rates to seek work in countries with lower unemployment rates than the other way around. I would agree that austerity linked to EU policies is largely responsible for the huge rise in Greek unemployment - but that is not the specific point that was being made in the original comment, which was only about the free movement of people.

this relates to my previous posting to request permission for circulating to friends and colleagues in Greece of your very interesting article, on the probable suspension of the operation of the Schengen area, partly or wholly!Stavros Tsiepas

The entire conduct of the EU with regard to the very large mixed flows arriving at the southern borders has been a shameful and worrying event. From the flagrant refusal of Hungary to accept international humanitarian law, through the chaotic and uncoordinated decisions of the German authorities, and now the political manipulation of Schengen membership... Europe has been tested and has failed dismally.

The political manipulation of Schengen is analogous to the political manipulation of the eurozone -- that is, making unwarranted threats of expulsion to Greece which are unrelated to the actual Treaty arrangements. Schengen, despite its operational limitations, is grounded in law and respects the EU's legal obligations in relation to asylum-seeking. Greece itself has also respected these obligations, but has been overwhelmed by the sheer numbers arriving on numerous small islands, the language problems (of reading Arabic passport details, for example), the flimsy support provided by Frontex and other member states, not to mention 5 years of economic depression and a nearly collapsed state infrastructure.

The complete lack of solidarity with a country under extreme pressure is telling: this is why I state that the EU has failed in its most demanding moments of the last year or so. Thank you for this excellent piece, which highlights the paucity of legal argument in the political debates.

update: on February 12th, 2016 the Council adopted a Recommendation to Greece to deal with 'serious deficiencies' at the border: http://statewatch.org/news/2016/feb/eu-council-recommendation-greece-5876-16.pdf (based on Art 15 of the Schengen evaluation rules, Reg 1053/2013). This recommendation means that the Commission can now make a recommendation that the Council recommend Member States to reintroduce border controls for longer periods (Art 19a(3) Schengen Borders Code, referring to Art 26 of the Code, as revised by Reg 1051/2013).